The issue presented by the state's appeal is a legal one: Are petitioner's
felon-in-possession convictions invalid because the 1995 felony on which they were
predicated was later invalidated on constitutional grounds? On appeal, the parties renew
the arguments that they made to the post-conviction court. Petitioner again argues that,
under the federal Fifth Amendment Due Process Clause, an unconstitutional conviction is
"void ab initio" and is invalid for all purposes. According to petitioner, it is "as if that
conviction never existed," and his firearm convictions, therefore, must be invalidated,
even though his 1995 predicate felony conviction was in place when petitioner knowingly
possessed two firearms. The state argues, in response, that due process principles do not
compel that result. Rather, according to the state, a state may prohibit the possession of a
firearm based on a person's status as a felon, unless and until that status is removed.
Thus, when a felon chooses to possess a firearm without first seeking relief from the
predicate felony conviction, a firearm conviction based on that conduct is not
constitutionally infirm.

Lewis, thus, was a case in which, in the course of the felon-in-possession
trial, the defendant sought to collaterally attack the predicate felony conviction as a
defense. Here, the procedural posture differs. Petitioner raised no defense to the felon-in-possession charges and was tried on his stipulation that he knowingly possessed two
assault firearms at a time when he stood convicted of a felony sexual assault crime.
Instead of attempting to collaterally attack the predicate 1995 felony conviction during his
felon-in-possession trial, petitioner pursued that collateral attack separately. He obtained
federal habeas corpus relief approximately three years later and only then brought this
post-conviction proceeding seeking to set his firearms convictions aside.

That procedural difference, however, does not alter the analysis. As lower
federal courts uniformly have concluded, the rationale in Lewis applies equally to cases,
such as this one, in which a person eventually obtains relief from a predicate felony, but
did not do so before knowingly taking possession of a firearm. See, e.g., U. S. v. Padilla,
387 F3d 1087, 1092 (9th Cir 2004) (even when a predicate felony conviction is void ab
initio, the conviction must be invalidated before the felon takes possession of a firearm;
later relief will not invalidate the felon-in-possession conviction on which it was
predicated); Burrell v. U. S., 384 F3d 22, 27-28 (2d Cir 2004)(petitioner not entitled to
relief where predicate felony conviction was not set aside until after felon-in-possession
conviction); U. S. v. Wallace, 280 F3d 781, 784 n 1 (7th Cir 2002) (same); U. S. v.
Snyder, 235 F3d 42, 52-53 (1st Cir 2000) (same); U. S. v. Kahoe, 134 F3d 1230, 1231-32
(4th Cir 1998) (same). The key inquiry is whether petitioner removed his felon status
before committing the alleged firearms offense, not before bringing his collateral attack
on that offense.

Thus, petitioner's argument proceeds from a false premise. Contrary to
petitioner's position, a constitutionally invalid conviction is not "invalid for all purposes."
Nor is it as if that conviction "never existed." Rather, when possession of a firearm is
prohibited based on the fact of a prior felony conviction rather than the reliability of that
conviction, the person's status as a felon is a valid basis for imposition of a firearm
disability. That remains true unless and until the prior conviction is invalidated or the
felon status is otherwise removed. Said another way, for such a felon-in-possession
statutory scheme, and consistently with due process principles, invalidation of the
predicate felony operates prospectively, but not retrospectively, to remove a person's
status as a felon as of the date of invalidation. A person who knowingly possesses a
firearm while the predicate felony is in place, even if it is later invalidated, is not entitled
to relief from the felon-in-possession conviction on the existential theory that the
predicate felony conviction never existed, the person was never a felon as a result of it,
and the person was never thereby prohibited from possessing a firearm.

The remaining question is whether Oregon's felon-in-possession statute,
like the federal statute at issue in Lewis, similarly focuses on a person's status as a felon,
rather than the reliability of the predicate conviction. Following the familiar methodology
for statutory interpretation outlined in PGE v. Bureau of Labor and Industries, 317 Or
606, 610, 859 P2d 1143 (1993), we begin with the statute's text and context.

"(1) Any person who has been convicted of a felony [under state or
federal law], who owns or has in the person's possession or under the
person's custody or control any firearm commits the crime of felon in
possession of a firearm.

"* * * * *

"(4) Subsection (1) of this section does not apply to any person who
has been:

"(a) Convicted of only one felony * * * and who has been discharged from
imprisonment, parole or probation for said offense for a period of 15 years prior to
the date of the alleged violation of subsection (1) of this section; or

"(b) Granted relief from the disability under 18 U.S.C. 925(c) or has
had the person's record expunged under the laws of this state or equivalent
laws of another jurisdiction."

(Emphasis added.)

ORS 166.270(1) applies broadly to any person who has beenconvicted of a
felony. By its terms, the statute is clear and unqualified: the mere fact of a felony
conviction imposes a firearms disability on a person who stands convicted of a felony
offense. The statute does not require the state to establish the validity of the conviction or
that the conviction will survive all possible appeals or collateral challenges. Rather, on
entry of judgment of conviction for a felony, a person "has been convicted" of a felony
for purposes of ORS 166.270(1) and is subject to the prohibition on possession of a
firearm. SeeState v. Dintelman, 112 Or App 350, 353, 829 P2d 719 (1992) (a person is
"convicted of a felony" for purposes of ORS 166.270 upon a determination of guilt and
entry of the judgment of conviction). The plain import of that language is that, unless and
until either that conviction is set aside or the person's status as a felon is otherwise
removed, the prohibition remains.

That conclusion is reinforced by the exceptions set forth in section (4),
which is context for section (1). In particular, under subsection (4)(b), a person who has
been granted relief under 18 USC section 925(c) (6) from the disability is not prohibited
from possessing a firearm. Likewise, a person who has had the predicate felony
expunged from his or her record is not prohibited from possessing a firearm. Those
exceptions plainly remove the firearm disability once the relief is obtained--that is, the
disability is removed prospectively. The statute does not provide, expressly or implicitly,
for "decriminalizing" a violation of the prohibition if the predicate felony is later
expunged, removed, or successfully challenged. Seegenerally State v. Anderson, 10 Or
App 34, 37, 497 P2d 1218 (1972) (rejecting argument that the defendant was not a
"convicted felon" because his conviction was pending on appeal); State v. Brown, 7 Or
App 5, 7-8, 488 P2d 856 (1971), rev'd on other grounds, 262 Or 442, 497 P2d 1191
(1972) ("Policy considerations underlying the prohibition against convicted felons
carrying concealable firearms support a holding that the pendency of an appeal should not
affect the conviction underlying the prohibition."). (7)

In sum, we conclude that the prohibition against firearm possession in ORS
166.270(1) focuses on a person's status as a convicted felon when he or she possesses a
firearm, not on the subsequent validity of that status. Our felon-in-possession statute, like
the federal law, "reflect[s] 'the desireablity of a clear, bright line in respect to gun
possession: one who has a felony conviction on the books, a conviction not yet set aside,
should simply know not to possess a gun.'" Snyder, 235 F3d at 53 (quoting U. S. v. Paleo,
9 F3d 988, 989 (1st Cir 1992)). As a result,

"the expungement, pardon, or restoration of civil rights (whether or not on
the ground that the conviction was void ab initio) must occur before the
erstwhile felon takes possession of a firearm. The [change to the person's
felon status] operates only prospectively, so that after the expungement,
pardon, or restoration of civil rights that felony conviction no longer serves
to impose a firearm disability."

Padilla, 387 F3d at 1092 (emphasis in original). As the Supreme Court concluded in
Lewis, such a policy choice has a rational basis and comports with due process. 445 US
at 64-65. Consequently, in this case, because petitioner did not obtain federal habeas
relief from his 1995 felony conviction before he engaged in the conduct that resulted in
his two convictions for felon in possession, he is not constitutionally entitled to relief
from those convictions. Accordingly, the trial court erred when it granted petitioner post-conviction relief.

Reversed on appeal; affirmed on cross-appeal; remanded for entry of
judgment denying the petition for post-conviction relief.

1. More specifically, petitioner challenges the post-conviction court's rejection of his
claim of inadequate assistance of appellate counsel based on counsel's failure to pursue a claim
that the two felon-in-possession convictions should have merged for purposes of sentencing or
conviction.

3. The Court's view of the significance of the plain text was bolstered by the statute's
context and legislative history. In particular, the Court noted that the statute provided for limited
exceptions to the reach of the prohibition (e.g., one who has been pardoned), but that no
exception was made "for a person whose outstanding felony conviction ultimately might turn out
to be invalid for any reason." Id. at 62. In consulting the legislative history, the Court identified
"nothing to suggest that Congress was willing to allow a defendant to question the validity of his
prior conviction as a defense" to a felon-in-possession charge. Id.

7. Cf. State v. Sims, 335 Or 269, 274, 66 P3d 472 (2003) (interpreting similar statute
and concluding that, in felony driving-while-revoked prosecution, the state had to prove only the
fact that the driver's license was revoked, not the validity of the revocation).